In an action triable by the court, where issues have been framed and have been submitted to a jury and a verdict thereon has been rendered, and the whole case has afterwards come on to be heard before the same judge before whom the jury trial was had, and he has made his decision and judgment has been entered thereon, we think that the party appealing therefrom has a right to include in his case the evidence given on the jury trial as well as any subsequently given before the judge alone.
Whatever may have been the practice when the courts of law and equity wore separate, it is not necessary under the present practice, for any reason which we can discover, to require in such a case that a motion to set aside the verdict on such issues should be made before the final hearing and judgment. Errors or omis
We see no evil in making the practice of reviewing these cases similar to that which exists whore a case is tried throughout by the court, as far as this can be done ; and our construction of section 1003 of the New Code is not inconsistent with this view. Part of a rule of the court which formerly existed (rule 40 of 1875) ivas stricken out at the last revision, so that there is nothing in the rules contrary to the practice here approved.
The evidence, therefore, ought not to have been stricken out, and the motion for a new trial should have been heard.
The orders, therefore, must be reversed, with ten dollars coste and printing disbursements in each.
Orders reversed, with ten dollars costs and printing disbursements in each.